Increase transparency for better case resolution

The CBA's Competition Law and Foreign Investment Review Section writes, in a letter about the Competition Bureau’s Draft Bulletin on the approach the Bureau takes on communications during its investigations, that it supports efforts to communicate better and to be more transparent about its work. But there are a few concerns.

First, the Section would like to know how the Bureau intends the Draft Bulletin on Transparency to interact with the existing Conformity Continuum Information Bulletin. “It would be helpful for the Bureau to clarify if the Draft Bulletin is intended to supplement or replace the Conformity Continuum Information Bulletin’s guidance on the Bureau’s general enforcement approach,” the letter reads.

The Section worries that the flexibility proposed in the Draft Bulletin might benefit the Bureau at the expense of constructive guidance to businesses, consumers and the legal community. Increased discretion for the Bureau appears to be a trend recently, which results in less procedural predictability. While conceding the Bureau does require flexibility, the letter says “it should be balanced against the value of giving meaningful guidance that can be relied on by stakeholders and promotes consistency in Bureau enforcement activities.”

The Section is concerned the tone of the Draft Bulletin suggests an adversarial approach that would lead to less transparency, not more. “We believe, in most cases (mergers and civil matters in particular), that increased transparency is likely to promote efficient case resolution. We are concerned that the approach to transparency in the Draft Bulletin will result in more lengthy, costly and adversarial enforcement processes – leading to adverse resource impacts for the Bureau and private parties,” the letter reads.

The CBA Section goes on to comment on specific provisions, including communications with parties subject to a review or investigation, statements on active investigations and statements on completed investigations

With respect to the latter, the Section endorses greater transparency on how the Commissioner’s discretion is exercised, which would promote accountability and credibility. Being more informative with Canadians about how the Competition Bureau administers and enforces the law benefits the public interest.

“Frequent public statements on completed investigations are important ways of sharing information to the public. They also help ensure that broad discretionary enforcement powers are exercised in a consistent and non-discriminatory manner,” the letter reads. “With limited exceptions, issuing statements on completed investigations should be routine and not require meeting exceptional criteria like triggering an elevated level of public interest.”